Historical Context in The Bill of Rights
The American Revolution: The most significant historical event preceding the drafting of the Bill of Rights was the American Revolution. After the American colonies had operated under the thumb of Great Britain for nearly two centuries, colonists began to grow irritated by the strict governance, high taxes, and military presence of the British. In 1774, the Continental Congress, a council of representatives from the thirteen colonies, met for the first time to envision a new nation, raise an army, and launch a revolt. In 1776, the Revolutionary War was underway and the Continental Congress declared their independence. By 1778, the war was won, and the new United States of America started to build towards a shared dream of a democratic nation.
The Articles of Confederation and the Constitution: When the Continental Congress gathered in the late 1770s, one of their objectives was to forge a provisional government code. This code would allow them to function as a legislative body, field an army to fight for independence from Great Britain, and conduct trade with other nations. This provisional code, finalized in November of 1777, was known as the Articles of Confederation. After the victory against Great Britain, the Continental Congress continued to meet, but with a new aim: to craft a more lasting system of government. These founding statesmen created a three-part structure: the executive branch, helmed by the president; a legislative branch, balanced between the Senate and the House of Representatives; and a judicial branch, guided by the nine justices of the Supreme Court. This new system became the United States Constitution and was passed and brought into existence in 1787.
The Federalists and the Anti-Federalists: In the drafting of the Constitution, there were two distinct groups of politicians. The Federalists, led by Alexander Hamilton, John Adams, and James Madison, favored a stronger federal government than had existed under the Articles of Confederation. They wanted provisions such as a powerful president and a national bank. The Anti-Federalists, led by Patrick Henry, Samuel Adams, and George Mason, wanted to downsize the power of the federal government and provide more rights to states and individual Americans. The Anti-Federalists voted against the Constitution and pushed for the inclusion of a Bill of Rights in order to empower individual citizens in the face of a strong federal government. In 1791, the Bill of Rights was successfully ratified and added to the Constitution.
The Bill of Rights in Practice: For the first century after the passing of the Bill of Rights, its amendments were, generally speaking, not of great legal importance. The rights set forth in the Bill of Rights applied only to the federal government, and for most of the 19th century it was not clear whether the states or the federal government had the chief power to pass and enforce laws. Only after the passing of the Fourteenth Amendment in 1868 did this begin to change. The Fourteenth Amendment allowed for a new process known as “incorporation,” whereby Constitutional laws were incorporated into state and local governments. In the last 150 years, the amendments stipulated in the Bill of Rights have been the source of a series of significant Supreme Court decisions, which have further and further elucidated the role of the Bill of Rights in American life and law.
Historical Context Examples in The Bill of Rights:
The Preamble to the Bill of Rights
"pursuant to the fifth Article of the original Constitution...." See in text (The Preamble to the Bill of Rights)
Article V of the Constitution states the process for proposing and approving amendments. In order to propose an amendment, two-thirds of the Senate and House of Representatives must agree to do so. After Congress is in agreement, three-fourths of the states must ratify the amendment before it becomes law.
"the following Articles be proposed to the Legislatures..." See in text (The Preamble to the Bill of Rights)
The ten amendments that would become known as the Bill of Rights began as seventeen articles passed in the House of Representatives on August 24, 1789. The Senate then approved twelve of the articles on September 9, and both houses of Congress approved those twelve on September 25, sending them to the states for ratification. Ten were ratified on December 15, 1791. One eventually became the Twenty-seventh Amendment, and another, which regulates numbers of Congressional representatives, is still technically pending ratification by the states.
"in order to prevent misconstruction or abuse of its powers..." See in text (The Preamble to the Bill of Rights)
The Bill of Rights was crafted in response to pushback from Anti-Federalists, who opposed the new Constitution and supported revising the Articles of Confederation. They feared that without a Bill of Rights to restrict government power, the Constitution would turn the fledgling United States into a new type of monarchy with the president functioning as a king. Madison’s language, which recalls the Declaration of Independence’s lines about the “abuses and usurpations” of King George III, is a promise to the states that the new Constitution will not be an echo of the monarchy from which they departed.
"a number of the States..." See in text (The Preamble to the Bill of Rights)
As of 1789, the United States was still composed of the original thirteen states. The Constitution was ratified with relative ease by Delaware, Pennsylvania, New Jersey, Georgia and Connecticut, but reached its first obstacle with Massachusetts. Massachusetts eventually ratified after an agreement was reached at the Massachusetts Convention, which stipulated that the state would ratify alongside a recommendation for a bill of rights. Maryland, South Carolina, New Hampshire, Virginia, and New York all ratified soon after with the same recommendation clause in place, with the ratification in New Hampshire representing the necessary two-thirds to make the Constitution law. North Carolina and Rhode Island most strongly resisted the Constitution and did not ratify until the establishment of the new government essentially forced them into compliance in 1790.
"beneficent..." See in text (The Preamble to the Bill of Rights)
The adjective “beneficent” refers to someone or something that performs good or positive deeds. Its use here addresses the fear of many Anti-federalists that the Constitution gave the federal government too much power. Madison and other contributors to the Bill of Rights addressed this fear by ensuring that the government’s goals will be beneficial to the public, extending “the ground of public confidence in the Government.”
"the ground of public confidence in the Government..." See in text (The Preamble to the Bill of Rights)
The Declaration of Independence not only catalogued King George III’s abuses of power but also served as a social contract for the new nation. For a government to effectively govern, the people must have confidence and faith that it is acting according to their best interests. This conceit was at the heart of the debate between the Federalists, who advocated for a new Constitution and an expansion of federal power, and the Anti-Federalists, who supported revising the Articles of Confederation and ensuring personal liberties would not be infringed upon.
"at the City of New York..." See in text (The Preamble to the Bill of Rights)
Prior to the Residence Act, several cities served as meeting grounds for the United States Congress and its predecessors: the Declaration of Independence was signed in Philadelphia, Pennsylvania; the Articles of Confederation were adopted in York, Pennsylvania; after the Pennsylvania Mutiny of 1783, Congress fled to Princeton, New Jersey; finally, after time in Annapolis, Maryland, and Trenton, New Jersey, Congress met in New York City. The city of New York served as home to Congress from its first formal session on March 4, 1789, through July 1790. Today, Congress convenes in Washington, D.C.
"one thousand seven hundred and eighty nine...." See in text (The Preamble to the Bill of Rights)
The amendments that became known as the Bill of Rights were not ratified by the states until December 15, 1791. This preamble represents the first draft of the first Congress. Originally there were seventeen articles proposed by the House of Representatives.
"on Wednesday the Fourth of March..." See in text (The Preamble to the Bill of Rights)
Article I, Section 4 of the United States Constitution states that Congress must meet at least once a year on the first Monday in December; however, it continues to say that Congress may pass a law to appoint a different day. The Congress under the Articles of Confederation resolved to meet on March 4th, 1789, the first session of the first Congress under the US Constitution.
The Ten Original Amendments to the Constitution of the United States
"Amendment X ..." See in text (The Ten Original Amendments to the Constitution of the United States)
The Tenth Amendment serves as a key point of compromise between the two groups who forged the Constitution, the Federalists and the Anti-Federalists. While the Federalists sought to steer the nation toward a strong centralized government, the Anti-Federalists favored a weak central government, with political power largely distributed between state governments and individuals. The Tenth Amendment provides for the Anti-Federalist agenda because it stipulates that any powers not specifically granted to the federal government in the Constitution “are reserved to the States respectively, or to the people.”
"Amendment IX ..." See in text (The Ten Original Amendments to the Constitution of the United States)
The Ninth Amendment represents a provision that clarifies the broader role of the Bill of Rights. The Federalists argued that naming certain rights for individual citizens removes every unnamed right by default. The Ninth Amendment addresses this precise problem by dictating that the particular rights listed in the Constitution do not “deny or disparage” any other rights, all of which are retained by the American people.
"Amendment VIII..." See in text (The Ten Original Amendments to the Constitution of the United States)
The Eighth Amendment is nearly identical to a measure in the English Bill of Rights of 1689, which dictates that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The English law was motivated by the case of Titus Oates, who was imprisoned in 1685 after his false accusations resulted in numerous executions of innocent people. Oates’s punishment was to be annually brought out for three days of public shaming: two days spent pilloried—constrained and locked to a post in a public square—and one day spent tied to a moving cart to be dragged through the streets and whipped. Because of the depravity of Oates’s punishment, English and, in turn, American lawmakers set legal measures against similarly “cruel and unusual punishments.” This clause, however, has not historically included certain forms of execution, which has been a source of ongoing debate.
"Amendment VII..." See in text (The Ten Original Amendments to the Constitution of the United States)
While the Sixth Amendment provides rights to defendants in criminal cases, the Seventh Amendment offers the right of trial by jury to defendants of common law cases. Common law cases tend to focus on property and are significantly less severe than criminal cases, which focus on crimes which endanger the health and safety of other people. The Seventh Amendment is often considered one of the most straightforward amendments. There are two particularly notable facts about it. First, while the amendment was ratified, it has never been officially incorporated by the states. Most states voluntarily follow the Seventh Amendment but it has not been federally enforced. Second, it remains unclear why there is a threshold sum of twenty dollars. There is little scholarship on that clause, and no consensus.
"Amendment VI..." See in text (The Ten Original Amendments to the Constitution of the United States)
The Sixth Amendment sets forth a number of critical guidelines for the procedures of criminal trials in court, all of which provide rights for accused criminals. Trials must be “speedy,” meaning that that the defendant has the right to be tried soon after being accused; the definition of “soon” is determined by the states. Trials must be public, encouraging transparency. Trials must be determined by an impartial and local jury. These last two provisions were motivated by the numerous trials of Americans held by British courts in the years leading up to the American Revolution. The British courts were not public and did not provide juries, resulting in sentences which struck many Americans as unjust. In the wake of those trials, which Thomas Jefferson decries in the Declaration of Independence, the American founders strove to offer protections and rights for defendants.
"nor be deprived of life, liberty, or property..." See in text (The Ten Original Amendments to the Constitution of the United States)
This protection against the deprivation of “life, liberty, or property” was directly inspired by John Locke’s Second Treatise of Government. Locke writes that “no one ought to harm another in his life, health, liberty, or possessions.” The founding fathers were profoundly influenced by Locke’s political philosophy, and wrote a nearly identical clause into the Declaration of Independence.
"Amendment IV..." See in text (The Ten Original Amendments to the Constitution of the United States)
The Fourth Amendment to the Constitution was conceived as a protection against the invasive actions of the British Army in the years leading up to the American Revolution. Following the legislation of the British Parliament, the troops would use “writs of assistance” to enter and seize the property of American colonists. A “writ of assistance” is a generalized search warrant and allows government troops and officials to intrude on civilians with few restrictions. The Fourth Amendment prevents government officials from attaining a warrant to enter a citizen’s property without “probable cause,” which requires substantial evidence and reasoning. This measure has proved critical in shaping the operations of American law enforcement agencies.
"Amendment III..." See in text (The Ten Original Amendments to the Constitution of the United States)
The inclusion of the Third Amendment was motivated by the actions of the British army in the American colonies in the years leading up to and during the American Revolutionary War. The British Army often quartered, or housed, their troops in the private homes of American colonists. This trend caused sufficient irritation and grief that the Constitutional Congress saw fit to include a measure against such actions in the future. The Third Amendment has been the least litigated amendment in US legal history, spurring the American Bar Association to nickname it the “runt piglet” of the Bill of Rights.
"Amendment II..." See in text (The Ten Original Amendments to the Constitution of the United States)
The origins of the Second Amendment can be traced back to two sources. The first is the English Bill of Rights of 1689, which includes a provision stating “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” That law was motivated by the tumult in England during the late 17th century, including clashes between Protestants and Catholics—which explains why only Protestants could have arms. According to British law, citizens had natural rights to life, and therefore to self-defense, and therefore to arms. The second source was the necessity of militias in the American Revolution. The American colonies would have likely failed to secure independence from Great Britain had it not been for the self-organized militias who rallied to fight against the occupying British troops. Recognizing the role of those militias, the Constitutional Congress included the Second Amendment, which allows citizens to bear arms because of the importance of “a well-regulated militia.” James Madison, who authored the Bill of Rights, retained from the English text the word “arms,” which comes from the Latin arma, meaning “tools.” Due to the inherent dangers of allowing citizens to arm themselves, the Second Amendment has remained one of the most controversial amendments.